Thursday, June 22, 2017

Sullying the Process: Sully and the Construction of the National Transportation Safety Board

Setting the Scene

Producers of popular culture love a good legal battle. It makes for a riveting storyline. Courtrooms tend to embody the quintessential sites where legal conflicts come to a head. Yet, as many in the legal community are aware and as law students come to learn, courtrooms are not the only venues where disputes and controversies are hashed out and hopefully resolved. There are any number of legal controversies that are litigated and/or investigated outside the courtroom. Enter the magical and diverse world of administrative law.

Administrative law is a rather complex area of study and practice. It concerns a wide variety of decision-making processes. As societies have become more complex, governments have created a plethora of decision-making and dispute-resolution regimes that specialize in and possess expertise on a broad number of subject matters – e.g., immigration, homeland security, transportation, labour relations, social security, environmental protection, regulation of professions, regulations of sports, and the list goes on.

Administrative bodies come in various forms – government departments, tribunals, boards, specialized courts, commissions of inquiry, etc. Administrative agencies/actors engage in a range of conduct. For example, some formulate broad rules and regulations that are or appear legislative in nature. In that capacity, they may consult a broad spectrum of people with a wide range of interests – including those impacted by the potential rules, other stakeholders and experts. Other agencies/actors engage in adjudicative functions, which may resemble to varying degrees judicial proceedings. Some of the more well-known administrative processes of an adjudicative nature include adversarial proceedings before US immigration judges, or litigation of labor disputes before labor relations boards or arbitrators. In such settings, there are two adverse parties with an impartial decision-maker deciding the matter. Other adjudicative proceedings may be more inquisitorial in nature, with the decision-maker participating in the gathering of evidence by posing the actual questions to a party or parties appearing before them.  

As a teacher of administrative law (and a law and popular culture scholar), I am always fascinated to see how films or television series present administrative proceedings as part of their storylines. In particular, I am interested in how these productions speak to matters of procedure (not the sexiest of subject matters to be sure). Administrative proceedings, even those that replicate an adjudicative setting, are not courts of law. Rules employed in courts of law, including the rules of evidence and rules of civil procedure are relaxed in administrative proceedings. Still, there are nevertheless rules/norms of practice/procedure that decision-makers are expected to adhere to. There are any number of sources for such rules – the constitution, statute, regulations, as well as the common law. They may relate to issues of basic notice, discovery and disclosure of information possessed by an agency or other third parties; participatory rights during a hearing; the ability to have counsel present during questioning; as well as the right to have access to reasons upon which a decision is based. Not all proceedings will permit the presence of counsel during a hearing, the ability to participate in proceedings, or access to possibly relevant information. Most members of the public are not aware of these matters for obvious reasons.  So, when films present administrative proceedings as part of their narratives, what educative role can they play about the decision-makers, the body itself, the manner in which decisions are made and their function(s)?

In recent years, two films, Sully (starring Tom Hanks) and Flight (starring Denzel Washington) have presented or constructed proceedings before the United States’ National Transportation Safety Board (NTSB). The NTSB is an administrative body created by the United States Congress. Among its many functions, the NTSB investigates airplane accidents occurring in the United States – indeed it is mandated to do so by law. Both films involve airline accidents.

Sully is based on the real life events of US Airways Flight 1549, which, following take off from La Guardia Airport, experienced a collision with a swarm of Canadian geese. Some of the flock flew straight into the engines causing total or near total shutdown. Consequently, the pilots, Captain Chesley Sullenberger and first officer Jeff Skiles were forced to make an emergency landing in the Hudson River (separating Manhattan and New Jersey). The incident took place in mid-January 2009 and was highly publicized. Much less so were the NTSB proceedings that followed, until they became a central feature of the film.  

Flight, by contrast, was a fictional story. Due to mechanical failure, an airplane piloted by Denzel Washington’s character was forced to engage in an unorthodox maneuver to stop a rapid and steep descent by flying the plane upside down. The plane is able to halt its vertical descent and fly horizontally before crash landing in a field. Though some perish, most of the passengers and crew survive. Washington’s character pulled off a miracle; however, he was also high on narcotics and intoxicated during the flight. The film in part features whether he can avoid having this disclosed, the consequence of which may lead to criminal liability.  

In this post, I want to examine how Sully, in particular, explores the nature of administrative proceedings and what it might teach us about them. Because Sully is based on real life events, I not only want to examine how the film constructs the nature of the proceedings, but also how the proceedings transpired in real life based on transcripts/footage. While Sully may have accurately depicted the events leading to and including the air strike with the geese, followed by the emergency landing in the Hudson River and subsequent rescue by first responders, the proceedings before the NTSB are something else entirely. It might be safe to say that they are indeed completely fictional. Accordingly, I want to examine what we can learn about the depiction of the NTSB proceedings, even if fictional, as a teaching moment regarding the importance of participatory rights and disclosure of information. Second, I shall argue that this fictionalization, however dramatic and entertaining on one level, problematically misrepresents the nature of such proceedings in the viewing public’s mind more generally, but also in connection with what happened in this case specifically.

To provide some clarity to readers, when I use the term Sully in italics, I am referring to the film itself. When referring to the film representation of Captain Sullenberger, I shall refer to the character as “Sully” without italics. Lastly, when I refer to the real-life Captain Sullenberger, I shall refer to him as “Sullenberger”.

Depicting the NTSB Process 

A primary feature of Sully is the investigation of the landing in the Hudson River. At the core of the investigation as presented in the film is the necessity of landing the plane in the Hudson as opposed to flying back to La Guardia Airport or an alternative airport in New Jersey. As part of this second-guessing of the pilots, NTSB investigators indicate that computer simulations demonstrate that Sully could have flown back to La Guardia or Teeterboro Airport in New Jersey. Just prior to the hearing, Sully is seen requesting that human piloted flight simulations be undertaken. At the hearing, live streamed video shows two simulations where pilot crews successfully land at La Guardia and Teeterboro respectively. Immediately following this, the following scene transpires where the character Sully makes a number of important points and poses certain questions of the NTSB. The following clip illustrates this.

Through this scene, which as I will demonstrate later is fictional, some important administrative law principles arise. First is the importance of participatory rights and the ability to speak to the administrative decision-maker. Here the character Sully is able to confront and challenge the NTSB panel on its willingness to rely on rather faulty evidence in questioning his decision to land the plane on the Hudson River. He does so by pointing out that the pilots in the simulators have been given the information beforehand about what is to happen and where they were expected to fly to immediately after the bird strike. Sully is able to correctly advise that this removes the human element of what it is like in that cockpit at the time of the strike and the need to make some allowance for reaction time to assess what has transpired and should happen. Furthermore, as part of this confrontation, Sully is able to elicit information about how many attempts the pilots were given before getting these simulated landings right. Further to Sully’s intervention, the two flight simulation teams are directed by the panel to attempt landings after 35 second delays following the bird strikes (to account for circumstances similar to what Sully and Skiles faced). In both instances, the landings were portrayed as unsuccessful. One of the attempts is depicted here:

It is worth noting that not every administrative proceeding or investigation, more generally, permits participation of those being investigated through oral hearings. To the extent that any participation at all is allowed in various administrative processes, this may be limited to written representations even where the stakes for the individual are important.

In addition, the scene also illustrates the value of disclosing information. Disclosing information allows a person who is the subject of proceedings to understand, among other things, the case to be met. As Sully illustrates, it allows a party to contextualize certain data and its overall value. In the film, armed with the number of practice runs the simulator pilots were given, Sully is able to cast doubts on the validity of the successful landings depicted. Put another way perhaps, Sully is able to argue how the flight simulations shown and the reliance by the Board on these successful landings are entirely de-contextualized. Ultimately, the audience is given the message that without these opportunities to participate and seek disclosure of certain information, Sully and Skiles would be faulted for their decision to land in the Hudson. 

Framing the Problem

Whatever broader insights Sully provides on procedural rights, there are nevertheless problematic aspects in terms of its representation of the NTSB. As noted above, the depiction of the proceedings was unrealistic, if not entirely fictional – this refers not just to the actual dialogue between Sully and the panel, but also the general tone in which the questions were asked. Sully portrays NTSB investigators as openly second-guessing Sully’s and Skiles’ decision to land on the Hudson. But there is more to it than just presenting the NTSB panelists as disrespectful and arrogant. The panelists withheld information about the numerous attempts made by the simulator pilots to land the planes at the designated airports. It was only after Sully seeks disclosure during the hearing that the information is revealed. It almost harkens to instances where government prosecutors in criminal trials have failed to disclose exculpatory information to defendants or defence counsel.

The film’s fabrication of what transpired during the hearings was substantial. One need only read the transcripts or watch footage from the hearings to see that the manner in which Sullenberger was actually treated in the hearing was much different than that which was portrayed in the film. Indeed, NTSB member Robert Sumwalt, who chaired the hearing and who was himself a former commercial airline pilot, praised Sullenberger for his cool and professional mindset, which helped land the plane into the Hudson. At one stage Sullenberger asserted the following:

But I think both Jeff Skiles and I have done this long enough and trained long enough to have internalized the values of our profession and to have learned what needs to be done, and so we quickly acknowledged our bodies' innate physiological reactions, set it aside and began to work on the task at hand.

In response, Sumwalt posited:

And I think that is so important. I'm trying to get an idea of what your mindset is and how you were there. I can contrast you to a crew that we looked at recently that I mentioned the captain said he was ambivalent. They had an engine fire 800 feet AGL and it took about three and a half 16 minutes before they completed the checklist, which should be a memory item, should be done immediately. So I want to be able to bottle your mindset and be able to make sure that everybody is drinking from that same bottle.

Notably, this type of language hardly suggests skepticism regarding Sullenberger or Skiles and their decision-making that day. Chairman Sumwalt also observed in his concurrence in the final NTSB report the lack of available options but to land the plane in the Hudson. The NTSB report clearly pointed to the fact that the probable cause for the landing was the bird strike and the consequent damage to the engines. Sumwalt articulated that the reason for his concurrence was as follows: “I would like to amplify why I believe this event was a “forced landing on water” rather than a “ditching.”” He argued that the NTSB’s understanding of a ditching involved a planned component where the crew knowingly lands on water. Ditching allows for some time to prepare. By contrast, Sullenberger and Skiles had very little time. Sumwalt states the following:

There was only one minute, fifteen seconds from the time the captain told the air traffic controller that he couldn’t make Teterboro Airport and uttered those bone-chilling words, “We’re gonna be in the Hudson,” until the actual touchdown. 

I question whether having one minute, fifteen seconds is sufficient to consider a landing as “planned.” I believe they reacted to their only viable option and landed where they could, instead of a “planned water event in which the flight crew… knowingly attempts to land in water.” 

Testimony from the public hearing indicated that there are unique attributes of a planned ditching that include the flight crew going through checklists, preparing the cabin crew, and having the passengers prepared. In the case of US Airways 1549, the crew didn’t have time to go through the ditching checklist, they didn’t have time to prepare the cabin, and the passengers were not prepared for the water landing. 

For the above reasons, I believe US Airways 1549 was a forced landing on water as opposed to a ditching. 

This point aside, whether we call this event a forced landing or a ditching, the objective of this investigation and its ensuing report is to help improve the outcome should future crews find themselves in the situation faced by this crew. The report produced by staff does exactly that. Therefore, I support the report’s findings, probable cause, and recommendations. 

During the film, the NTSB hearing focused on the flight simulations. The NTSB film panel, as depicted, stressed how questionable it was for Sully and Skiles to land in the Hudson River when the simulations showed the possibility of flying back to La Guardia or Teterboro airports. During the actual hearing, the flight simulations didn’t receive much attention. Indeed, when it did come up as a topic for discussion, this is an example of what was said by the Hearing Officer Robert Benzon when summarizing the results of the investigation up to the point:

During the course of the investigation, flight simulations were conducted. These flight simulations revealed that a successful return to LaGuardia or a diversion to Teterboro Airport was not assured. 

Both in content and tone, this is hardly the makings of the inquisition that the film seemed to portray. It's worth noting that Benzon and others were decidedly unappreciative of Sully's portrayal of the NTSB's investigation (see here and here).

So why does all this matter? Why should anyone be concerned about the film’s portrayal and construction of a relatively obscure federal administrative body? Films have the ability to construct and imagine groups of people in manners that other mediums may not. Noted law and film scholar Orit Kamir posits the following:

films are overwhelmingly influential, playing a key role in the construction of individuals and groups in contemporary societies. They reach enormous audiences and, combining narratives  and appealing characters with visual imagery and technological achievement, can stir deep emotions and leave deep impressions. Leading viewers through cinematic judgments constituting notions of justice, equality, honour and gender, films can be extremely effective in moulding public actions and reactions.
Here the construction of individuals and groups relates to those at the NTSB who worked on the investigation of the US Airways more specifically. However, at a broader level of construction, it relates to those who conduct such investigations more generally. The NTSB carries out important work which seeks to find causes of accidents, prevent future accidents, and worse still tragedies where there are human losses. This is important work that pursues a public safety and protection role. The general public’s exposure to the NTSB’s work is likely to be fairly limited, so when there is some representation/portrayal of its proceedings in popular culture productions, these relatively few depictions may have an impact on molding public reactions to its value. It might be fair to state that there is already an undercurrent of animosity to the idea of administrative oversight/regulation more generally. Witness the popularity of conservatives and libertarians railing against “Big Government”. Portrayals of surly and antagonistic administrative actors, as we see in Sully does little to allay such negativity. It only fosters a corrosive pessimism surrounding the need for and value of such bodies. Such pessimism may very well extend to other administrative bodies as being populated by incompetent, duplicitous, and/or vindictive hacks. The fact that Sully is purported to be based on real life events that are in the public’s knowledge only makes it more plausible that the depiction of the NTSB investigation and the hearing might be viewed as also being reflective of true events.

There are obvious commercial reasons for portraying the NTSB investigation and hearing in the manner that it was in Sully. As noted above it makes for a great (legal) drama. It pits a protagonist and obvious hero against a villain, here a federal administrative body. Here, Sully as David, must face off against two Goliaths. The first Goliath is represented by the circumstances he faces and the daunting task of saving the lives of those on board the plane. The second is the NTSB board, which actively seeks to second guess and impugn his decision. Perhaps we don’t often imagine administrative officials as heroes, but it certainly is easy as the film demonstrates to mis-characterize them as villains. In Robert Benzon's perspective in response to the film, he posited the following: “We’re not the KGB. We’re not the Gestapo. We're the guys with the white hats on." It hardly matters that the names of the NTSB investigators in the film, including Benzon's, were all fictional (though it may certainly matter to the actual individuals). It does certainly matter to the institution and the public’s respect and understanding for the value of its work. Sully did them a disservice.

Monday, April 3, 2017

Fraud in the First Degree: BBC’s Undercover, Sexual Assault and the Vitiation of Consent

“Violence against women is as much a matter of equality as it is an offence against human dignity and a violation of human rights.”[1]
- Justice Claire L’Heureux-Dubé

“Sexual assault is…an assault upon human dignity and constitutes a denial of any concept of equality for women.”[2]
- Justice Peter Cory

“It must also be borne in mind that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work.”[3]
- Justice Antonio Lamer

If a person tells a lie in order to seduce or persuade another into having sex…and it works, should such behaviour amount to a criminal act? If the answer is affirmative, should any lie or series of lies, lead to criminal liability? A recently created BBC television series, Undercover provides a popular culture depiction of when lying may be taken too far.

In the six-episode series, English barrister Maya Cobbina (played by Sophie Okonedo) meets and eventually falls in love with Nick Johnson, an alleged writer and athlete (played by Adrian Lester). It turns out that Johnson is an undercover police officer assigned to spy on Maya and her political/community activities. He too eventually falls in love with Maya and appears to have left the police force for many years. Together, they have three children who grow up to be teenagers. Maya and the children are unaware of Nick’s true identity (for much of the series). After Maya is hired as the Director of Public Prosecutions, she pursues an investigation into the killing of an old friend and community activist (Michael Antwi) while in police custody. At this point, Nick’s former undercover unit handler re-enters his life and coerces Nick to obtain information about Maya’s work and her investigation into Antwi’s death. As the story progresses Maya confronts Nick with her discovery that he has assumed the identity of an individual who died as a child. He confesses. Maya then accuses Nick of stealing her life. In one particularly visceral scene, the following exchange ensues:


You raped me.


What? No.




No, Maya I...


Stop saying my name! You are a rapist! I gave my cons[ent]. I fell in love with someone who isn't you. Who are you?

Undercover was inspired by revelations that actual undercover British police officers pursued long-term relationships with various women, and in some cases had children with them.[4] The objective was to spy on these women and the protest group(s) to which they were members or affiliated. Relationships between the undercover officers and their targets lasted several years. After such relationships became public and there was some outcry, new rules have since been formulated which forbid intimate sexual contact except in extenuating circumstances. A lawsuit was also filed by many of the women, with whom relationships were formed and a settlement was reached in late 2015 that involved both monetary compensation and an apology by the state.[5] As part of the apology, an official for the Metropolitan Police Service stated:

I acknowledge that these relationships were a violation of the women’s human rights, an abuse of police power and caused significant trauma. I unreservedly apologise on behalf of the Metropolitan police service. I am aware that money alone cannot compensate the loss of time, their hurt or the feelings of abuse caused by these relationships.[6]

It does not appear that any police officers were convicted or much less charged with sexual assault in these cases. Drawing from the dialogue above between Maya and Nick, we might ask, should undercover police operations that involve officers sleeping with targets, who are unaware that they are dealing with undercover state agents, be considered criminal? In cases such as these, does the act of misrepresenting one’s identity in such a substantial and fundamental way amount to fraud vitiating consent to sex? Or put another way, should the scope of “fraud”, in the context of sexual assault, be expansive enough to encompass substantial deception by undercover officers that leads to a sexual and intimate relationship with a target?

There is no one simple answer to this given the numerous criminal statutes and jurisdictions around the world. However, given my familiarity with it, I shall draw on Canadian criminal law for some assistance in thinking about these matters. Typically, sexual assault involves an unwanted sexual touching.[7] The Supreme Court of Canada has broken this down into three components – (1) a touching; (2) of a sexual nature; and (3) an absence of consent.[8] The absence of consent is determined from a purely subjective standpoint on the part of the complainant at the time of the touching.[9] Consent relates to the specific sexual act or acts in question.[10] The prosecution must also demonstrate that the accused intended to engage in the touching knowing that the complainant did not give consent or were reckless or willfully blind with respect to consent.[11]

Critical to the scenario posed is the matter of consent.[12] Canadian law recognizes that consent can be vitiated by fraud. Section 265(3)(c) of the Criminal Code provides “no consent is obtained where the complainant submits or does not resist by reason of … fraud.”[13] The Supreme Court of Canada has articulated that there are two components to demonstrating fraud in this context. First, there must be an act of dishonesty – this may include the non-disclosure of important facts.[14] Second, the dishonest act must also result in a deprivation or risk of a deprivation amounting to serious bodily harm.[15] The Supreme Court of Canada originally formulated these elements regarding fraud vitiating consent in R v Cuerrier – a case concerning an accused who failed to reveal information about his HIV status to two complainants prior to having sexual intercourse.[16]

More recently, in R v Hutchinson, the Court applied these elements in a case where the accused agreed to wear condoms when having sex with the complainant but unbeknownst to the latter, the accused intentionally damaged the contraceptives by poking holes in the condom.[17] This resulted in the complainant becoming pregnant.[18] The Hutchinson Court concluded that there was clearly a falsehood – the accused’s failure to disclose that he pokes holes into the condoms thus compromising their contraceptive value.[19] Second, with respect to the element of a deprivation leading to a “significant risk of serious bodily harm”, the Court noted that this did not have to address only harm in the “traditional sense” (whatever this means), it also “includes at least the sorts of profound changes in a woman’s body — changes that may be welcomed or changes that a woman may choose not to accept — resulting from pregnancy.”[20] The Court in Hutchinson asserted that while the Cuerrier Court was addressing the specific risk of sexually transmitted diseases causing the harm in question, this “did not foreclose the possibility that other types of harm may amount to equally serious deprivations and therefore suffice to establish the requirements of fraud under s. 265(3)(c).”[21] The Court stated: “We conclude that where a complainant has chosen not to become pregnant, deceptions that deprive her of the benefit of that choice by making her pregnant, or exposing her to an increased risk of becoming pregnant by removing effective birth control, may constitute a sufficiently serious deprivation for the purposes of fraud vitiating consent under s. 265(3)(c).”[22] More critical to the analysis concerning identity fraud in the undercover police scenario illustrated in Undercover, the Court stated that the following:

This application of “fraud” under s. 265(3)(c) is consistent with Charter values of equality and autonomy, while recognizing that not every deception that induces consent should be criminalized. To establish fraud, the dishonest act must result in a deprivation that is equally serious as the deprivation recognized in Cuerrier and in this case. For example, financial deprivations or mere sadness or stress from being lied to will not be sufficient.[23]

It is worth noting that in Cuerrier, Justice Cory, writing for the majority was concerned that without the requirement of a significant risk of serious bodily harm, an overexpansion of what constituted fraud might criminalize many fraudulent representations, which, however immoral should not be criminalized. Justice Cory hypothesized the following:

Let us assume that [a male accused] lied about his age and consensual sexual act or acts then took place.  The complainant testifies and establishes that her consent would never have been given were it not for this lie and that detriment in the form of mental distress, had been suffered.  Fraud would then be established as a result of the dishonesty and detriment and although there had been no serious risk of significant bodily harm a conviction would ensure.[24]

Justice Cory posited:

The same result would necessarily follow if the man lied as to the position of responsibility held by him in a company; or the level of his salary; or the degree of his wealth; or that he would never look at or consider another sexual partner; or as to the extent of his affection for the other party; or as to his sexual prowess.  The evidence of the complainant would establish that in each case the sexual act took place as a result of the lie and detriment was suffered.  In each case consent would have been obtained by fraud and a conviction would necessarily follow. The lies were immoral and reprehensible but should they result in a conviction for a serious criminal offence? I trust not.  It is no doubt because of this potential trivialization that the former provisions of the Code required the fraud to be related to the nature and quality of the act.[25]

Drawing from these passages from Hutchinson and Cuerrier, one can deduce here that the Court is concerned with over-criminalizing all forms of fraud in connection with sexual intercourse. Yet, I sense that there may be instances of fraud that the Court might be willing to recognize as rising to the level of warranting criminal liability. When one considers the idea of police officers going under such deep cover lasting for numerous years, while pursuing long term relationships and having children (in some cases) with their targets, we are no longer just referring solely to financial deprivations, or mere sadness or stress from having been lied to. We are speaking of types of potentially significant emotional and psychological harm (which in turn has physical manifestations). It is perhaps all of these things and much more simultaneously. When children are added into the mix, it is fair to say that many would not want or choose to have children in such circumstances. The fraud involved deprives them of the autonomy to choose not to have a relationship or bring children into the world under such circumstances. What we have here is not just one or two “small” lies, but a rather comprehensive constellation of intersecting falsehoods. To reiterate a message from the Hutchinson Court, Cuerrier “did not foreclose the possibility that other types of harm may amount to equally serious deprivations….”[26]

Drafters of criminal statutes may not have contemplated such behaviour from police officers and the degree of fraud implicated in these instances. Nevertheless, if, as in the Canadian context, fraud may vitiate consent, courts should adapt their understanding accordingly. Cuerrier addressed the context of fraud in connection with the failure to disclose one’s HIV status. The concept of harm had to be re-examined when dealing with Hutchinson in connection with an unwanted pregnancy. Similarly, should it ever arise, courts should adapt their understanding of fraud where there is a substantial degree of fraud in connection with misrepresenting one’s identity and life history of the kind illustrated in Undercover and more importantly the real life narratives upon which it was based. If the Criminal Code provision protects values founded within the Canadian Charter of Rights and Freedoms such as autonomy (and respect for autonomy is something that is undoubtedly not unique to Canadian law), this should protect targets of police investigations from sexual assault.[27] 

What are your thoughts? Should police officers who engage in this kind of behavior be held criminally liable?


1. R v Ewanchuk, [1999] 1 SCR 330 at para 69, 169 DLR (4th) 193, L’Heureux-Dubé, concurring. 

2. R v Osolin, [1993] 4 SCR 595 at 669, 109 DLR (4th) 478, Cory J.

3. Rothman v The Queen, [1981] 1 SCR 640 at 697, 121 DLR (3d) 578, Lamer J, concurring.

4. David Barrett, “Undercover police to be banned from having sexual relationships with targets” The Telegraph (29 October 2013), online: The Telegraph ; Vera Baird, “The sexual behaviour of undercover police fits the definition of rape” The Guardian (28 June 2013), online: The Guardian Unlimited .

5. Rob Evan, “Police apologise to women who had relationships with undercover officers” The Guardian (20 November 2015), online: The Guardian Unlimited .

6. Ibid [emphasis added].

7. Ewanchuk, supra note 1 at para 23.

8. Ibid at para 25.

9. Ibid at para 26.

10. R v Hutchinson, 2014 SCC 19 at paras 54-55, [2014] 1 SCR 346

11. Ewanchuk, supra note 1 at para 23.

12. Hutchinson, supra note 10 at para 67.

13. Criminal Code, RSC 1985, c C46, s 265(3)(c).

14. Hutchinson, supra note 10 at para 67.

15. Ibid.

16. R v Cuerrier, [1998] 2 SCR 371, 162 DLR (4th) 513 [Cuerrier citing to SCR].

17. Hutchinson, supra note 10 at para 2.

18. Ibid.

19. Ibid at para 68.

20. Ibid at para 70.

21. Ibid at para 69.

22. Ibid at para 71.

23. Ibid at para 72 [emphasis added].

24. Cuerrier, supra note 16 at para 134.

25. Ibid at para 135.

26. Hutchinson, supra note 10 at para 69.

27. The damage caused is not solely limited to the matter of sexual assault. As two of the British women who formed relationships with one of the undercover police officers indicated: “These undercover operations have grievously interfered with people’s right to participate in the struggle for social and environmental justice, and to protest without fear of persecution, objectification or interference in their private and family lives. People who stood up for their rights were blacklisted, and the grief of families fighting for justice for their loved ones became the subject of undercover investigations.” Lisa Jones & Kate Wilson, “Relationships with undercover officers wreck lives. The lies must stop” The Guardian (28 July 2015), online: The Guardian Unlimited .

Wednesday, January 18, 2017

The Fallout

Rape. It is a difficult word to write or say, let alone discuss. Regardless the society or culture and despite attempts to prosecute rape at the highest levels – even internationally as a war crime – it is still highly stigmatized.

Victims of all ages and genders are often in positions of shame and fear as a result of the assault they suffer. Popular media tends to address rape and its fallout in terms of families or communities that are unsupportive or even condemnatory of victims. In this dichotomy, the impact of rape on the community highlights the reinforcement of shame and ostracism. And when the victim finds supportive communities – be they families, friends, social workers or law enforcement officers – the focus tends to be on providing immediate assurances to the victims with scant attention to the long-term impacts on the victim or the community.

The BBC series Shetland dealt with rape and its fallout in a very different way, however. As the name suggests, the series is set in the Shetland Islands off the coast of Scotland. It follows the main major crimes unit for the island, headed by Detective Inspector James Perez and including Detective Sergeant Alison MacIntosh (“Tosh”), Detective Constable Sandy Wilson, and Sergeant Billy McCabe. Perez is the highly skilled group leader who is often socially awkward but still quite caring and protective of his teenage daughter, his team, and those impacted by crime. Although raised in the Shetland Islands, he lived in metropolitan Glasgow for many years and experienced the seedy side of life as a police officer there. Sandy is a local officer who appears tough at first but is particularly caring for his community and his family. Billy is at once a blustery older officer with a warm side that is more often expressed in gestures and jokes. And Tosh is a younger officer who is a capable, fun-loving and beloved loved member of the team.

During Season 3, there is a running storyline of a murder investigation that involves a Glasgow mob boss and his henchmen. When the henchmen are unable to convince Perez to back off from his investigation, one of them follows Tosh while she is conducting investigations in Glasgow. Ultimately, an order is given for Tosh to be abducted and raped in order to send Perez a message.

When Tosh is found, she tells the Glasgow officers that she was abducted and left on the edge of the city. Only when Tosh and Perez are alone does she admit that she was raped. The show captures in painful detail the intimate nature of processing for sexual assault. All this time, Perez is behind a curtain talking to Tosh, acting as a father figure and source of comfort for her. Clearly this has an important impact for Tosh but it also has a heavy impact on Perez, who suffers with the knowledge of what has happened.

Tosh insists on returning to work immediately, explaining to Perez that at work she feels normal. However, she also insists that none of her colleagues know what happened to her other than that she was kidnapped. Perez is scrupulous in honouring this request but at the same time is careful to screen her from certain aspects of the ongoing investigation that might be traumatic, particularly when it appears that a rape from years before is at the center of the murder investigation.

Beyond these measures to protect Tosh, the rape takes a personal toll on Perez, who not only wrestles with a certain level with guilt but also with the underlying mentality of men that allows them to commit such acts. This pulls the cover off a level of fallout from rape on the community – how decent and moral men in the community come to terms with the fact that a heinous act was committed by a man. Indeed, as the season progresses this shock and shame at the abilities of other men seems to seep further into Perez’s life and sense of identity at a personal and professional level. Personally, Perez finds himself so disrupted by the sense that men are too often power-seekers in relationships that he nearly ends a budding relationship. Professionally, Perez begins to examine the way in which he – and to a larger extent the male-dominated police force – sees women as officers and also as victims, particularly when they are victims of rape and related crimes.

Perez voices his professional concerns to Sandy in the context of the failure to report the older rape. Sandy at first raises the standard questioning as to why the crime was not reported and is touched when Perez asks him whether the victim (in that instance a former sex worker) would have been taken seriously and handled with dignity. At first Sandy seems to want to protest against this – speaking, one senses, from how he would handle the issue – and then stops to ponder how others in a police department, especially in a tougher metropolitan area, would respond to such a victim. Ultimately, the victim in that case is threatened and comes to Shetland to talk to Perez and Sandy. When she says that she is willing to give a statement about what happened to her, Sandy is tasked with helping her and is deeply affected. Indeed, he starts out by explaining that they will do everything to protect the victim and to make sure that all the necessary reporting is completed no matter how long it takes.

At the very end of the season, Tosh informs Billy that she will be staying with several of her friends for a few weeks. Although not necessary, she then fumbles through explaining that the kidnapping was more than just a kidnapping. Billy’s face goes through stages, from shock to deep sadness to near tears. He struggles to find a response other than to look at her with sad affection and offer her a hug if she is comfortable. She responds that she is not comfortable with anyone touching her and then heads home, leaving Billy to sit down in his office with what seems like the weight of the world on his otherwise reserved shoulders. It is clear that this is a weight which will not soon be lifted and that he is suffering at the idea of the pain caused to such a dear part of his work family.

Shetland does a thorough job of examining the impact of rape on the female victim, particularly where the victim is someone who “should have known better,” in this case because she is a detective. It also portrays a strong victim in the sense that she is eager to return to the aspects of life which give her normalcy even if they are the reason that she was assaulted. Yet it is in the shows portrayal of rape on the community of men who love and respect the victim that it is most noteworthy and unique.